INDAH v. DIRECTOR OF IMMIGRATION

CACV 58/2022

[2022] HKCA 564

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 58 OF 2022

(ON APPEAL FROM HCAL 1667 OF 2021)

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J U D G M E N T

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Hon Wong J (giving the Judgment of the Court):

1.  This is an appeal against the order made by Deputy High Court Judge Bruno Chan (“the Judge”) on 20 January 2022 (a) refusing leave to the Applicant to apply for judicial review and (b) making a Restricted Proceedings Order (“RPO”) against the Applicant. The intended judicial review was against the Notice of Decision of the Director of Immigration (“the Director”) dated 23 November 2021. The Director dismissed the Applicant’s request to make a subsequent claim on the basis that it was the Applicant’s second non-refoulement claim and it was essentially the same as that of her previous claim.

2.  The Applicant filed her skeleton submission in support of the appeal on 12 April 2022, more than 20 days after the date stipulated in paragraph 3[1] of the directions of the Registrar of Civil Appeals contained in a letter dated 14 February 2022 to the Applicant. Accordingly, as stated in paragraph 4 of the said letter, the Applicant is deemed to have waived her right for an oral hearing and elected to have her appeal disposed of on paper, and the present appeal is determined on the basis of the written materials before this court, including what are stated in the said skeleton submission.

BACKGROUND

3.  The Applicant is a national of Indonesia and has come to Hong Kong to work as a foreign domestic helper. Her employment was prematurely terminated on 5 April 2014 but she did not depart and instead overstayed. She was arrested by the police on 16 February 2015 and was referred to the Immigration Department for investigation. She raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by the creditor of her husband for failing to repay his debts.

4.  The Applicant is a repeated non-refoulement claimant. Her previous non-refoulement claim had been dismissed by the Director in his decision dated 12 October 2017 on all applicable grounds: torture risk[2], BOR 2 risk[3], BOR 3 risk[4], and persecution risk[5].

5.  The Applicant appealed and on 7 February 2018, the Torture Claims Appeal Board (“the Board”) dismissed her appeal and confirmed the decision of the Director. The Applicant then sought leave to apply for judicial review which was refused by the Court of First Instance on 19 July 2019. The Applicant appealed against the decision of the Court of First Instance and on 11 December 2019, the Court of Appeal dismissed the appeal. The Applicant’s notice of motion for leave to appeal against the Court of Appeal’s decision was also dismissed by the Court of Appeal on 28 May 2020 and then by the Appeal Committee of the Court of Final Appeal on 19 August 2021 under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484A.

6.  On 3 September 2021, the Applicant applied to the Director again to make a claim upon the same facts and added that apart from persisting threats from her husband’s creditor, there were also new threats from her father’s creditor over his recent debts, and that she also feared domestic abuse and violence if refouled back to her home country.

7.  By a Notice of Decision dated 23 November 2021(“the Director’s Decision”), the Director refused to allow the Applicant to make a subsequent claim on the ground that the additional assertion was not a significant change of circumstances as the threats were essentially the same as in her original claim, and therefore was contrary to the requirements stipulated by Section 37ZO(2) of the Immigration Ordinance. The Director observed that there was no evidential basis for any risk of domestic violence given her admission that her husband had died from a heart attack in 2015. The Director found that her claim of new threats from her father’s creditor was just bare assertions based on hearsays uncorroborated by any reliable evidence. The Director also noted that there had not been any direct threats against her since she left her home country more than eight years ago.

THE JUDGE’S DECISION

8.  On 6 December 2021, the Applicant filed a Form 86 and supporting affirmation seeking leave to apply for judicial review against the Director’s Decision (see Form CALL-1 at §13).

9.  The Applicant set out the following grounds for the application:

(1)  Procedural impropriety:

(a)  Failure to properly apply the UN requirement that the reforms and means of relief against torture have to be effective;

(b)  Failure to conduct sufficient inquiry into the relevant country of origin conditions in the assessment of the risk of her safety;

(c)  Failure to conduct any screening interview of her fresh case; and

(d)  Failure to consider her fear that her enemies were still looking for her and that she could not relocate to other places since they could easily trace her;

(2)  Error / misdirection in law: failure to consider the new fact which she had provided in relation to the risk of her life; and

(3)  There was no sufficient basis to conclude that she and her family member would not be at risk of being subjected to torture and / or CIDTP upon refoulement.

10.  The Judge considered the Director’s Decision with rigorous examination and anxious scrutiny, and did not find any error of law or procedural unfairness in the decision or any failure to apply high standards of fairness in the consideration and assessment of the Applicant’s request for a subsequent claim (see paragraph 15 of the Form CALL-1).

11.  The Judge found that the Applicant did not provide any valid reasons to challenge the Director’s Decision. In particular, the Judge found the Applicant had just made broad and vague assertions containing a few key words and phrases without any particulars or specifics or elaborations as to how they apply to her claim or what relevancy would they be to her case. The Judge agreed with the observation of the Board and the Director in the earlier decisions that the claim of the applicant was one based on some private monetary disputes without any political elements or official involvement, and relocation was viable. (See paragraph 14 of the Form CALL-1).

12.  The Judge was not satisfied that there was any realistic prospect of success in the Applicant’s intended application for judicial review. Accordingly, the Judge refused the Applicant’s leave application.

13.  In the light that the Applicant’s non-refoulement claim had already been conclusively determined in previous proceedings, ending with a decision of the Appeal Committee of the Court of Final Appeal, the Applicant was still trying to re-litigate her case by making a subsequent claim based on essentially the same facts and basis, and having considered section 27 of the High Court Ordinance[6] and relevant authorities, the Judge found the Applicant’s conduct as amounting to an abuse of process and found that the making of a RPO is appropriate for the present case (see paragraphs 16 ‑ 21 of the Form CALL-1).

14.  Accordingly, the Judge made the following RPO against the Applicant:

“(1) The Applicant be prohibited from commencing any fresh proceedings by whatever originating process, or continuing any existing legal proceedings, relating to any non‑refoulement claim of the Applicant in the Court of First Instance unless with leave obtained under paragraph (2);

…”

THIS APPEAL

15.  On 26 January 2022, the Applicant filed an affirmation indicating that she would like to seek leave to appeal against the RPO.

16.  By the letter dated 31 January 2022, the Judge directed the Applicant to file the Notice of Appeal at the Appeals Registry within 14 days.

17.  In her Notice of Appeal dated 31 January 2022, whilst originally including an appeal against the decision refusing to grant leave to apply for judicial review, the Applicant crossed it out and indicated that the appeal is against the RPO, asking for it to be set aside. The Applicant stated as the grounds of appeal the followings:

(1)  the Director failed to conduct a screening interview for her appeal; and

(2)  the Judge did not consider her fear that she would face a real risk upon being refouled back to her home country.

18.  In her skeleton submission, the Applicant confirmed that she is appealing against both the decision of the Judge refusing her application for leave to apply for judicial review and imposing the RPO. Besides, she stated:

(1)  she would still be facing real risk of life if she returns to her country;

(2)  she has been suffering from severe mental distress and this will worsen if she returns;

(3)  the Judge failed to take into account that the Director did not provide any screening interview or duty lawyer to her to establish her claim;

(4)  her claim is not a personal or private dispute, her life was at risk and she would be in danger wherever she would be in the country as her enemies are still looking for her, and she would be subjected to persecution.

DISCUSSION

19.  Despite the ambiguity in the Notice of Appeal, we have considered both the Judge’s refusal to grant leave to apply for judicial review and the RPO he made.

20.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. The court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).

21.  We are of the view that the Applicant’s complaint that the Director failed to conduct a screening interview for her second non-refoulement claim is without any merit. The Director had already conducted an interview with the Applicant on 10 October 2017 for her initial non-refoulement claim. For the Applicant’s subsequent claim, the Director further requested the Applicant to provide additional information and evidence in writing in support, which the Applicant provided on 20 October 2021 and 3 November 2021. The Director correctly found that the basis of the Applicant’s claim was essentially the same as that of her previous claim and was therefore entitled to consider an additional interview unnecessary.

22.  As regards the Applicant’s complaint that the Judge did not consider her fear that she faced was a real risk, it is only a bare assertion. In our judgment the Judge had adequately considered her case. There is no merit in the complaint.

23.  The other matters stated in the Skeleton Submission are primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board (see Re Kartini [2019] HKCA 1022).

24.  We do not find the Applicant has raised any viable grounds of appeal against the Judge’s decision to refuse to grant leave to apply for the judicial review.

25.  We now turn to her appeal against the RPO.

26.  In Siti Khotimah v Director of Immigration[7], this court held that:

(1)  Apart from the statutory powers to prevent abuse of court’s process in sections 27 and 27A of the High Court Ordinance, it is a proportionate measure for a CFI judge to deal with vexatious litigants by exercising the discretionary power under the court’s inherent jurisdiction to make appropriate restrictive order to avoid abuse of the court’s process;

(2)  Whether to make the order is a fact-specific exercise, ordinarily, it will be sufficient to focus on the vexatious conduct of the litigant;

(3)  In relation to non-refoulement claims, the court may, as it thinks fit, give due regard to the wider context in which the legal process is being abused by unsuccessful claimants;

(4)  Generally, such order is called for when a vexatious litigant has already involved the appellate process unsuccessfully but persisted by re-litigating his wholly unmeritorious case all over again; and

(5)  The duration of the order must be proportionate to the abuse by the litigant concerned, taking into account all the relevant circumstances.

27.  In Wahyuni v Director of Immigraion[8], Chow JA (sitting as an additional judge of the Court of First Instance) observed:

“The underlying purpose of the court’s jurisdiction to make a RPO is the prevention of abuse of process. The categories of abuse of process are never closed. In Etik Iswanti, at §35, this court held that repeated actions evidencing a calculated attempt by a defendant to delay an inevitable judgment or its execution, or a refusal to accept the unfavourable final result of a litigation, or seeking to re-open matters already determined in a previous action, may be regarded as vexatious legal proceedings which would justify an order being made under s 27 of the High Court Ordinance. Similar considerations are applicable in relation to the court’s exercise of its inherent jurisdiction to make a RPO against a non-refoulement claimant who seeks repeatedly to re‑litigate his or her non-refoulement claim.”

28.  We agreed with the Judge that the Applicant’s conduct in re‑litigating her non-refoulement claim without viable grounds amounts to an abuse of process. The RPO made against the Applicant is, in the circumstances of the present case, fully justified. Her case is obviously untenable and hopeless. Her repeated applications are indicative of an intent to delay the unfavourable outcome of her non-refoulement claim. We find the five years’ duration and the other terms of the RPO proportionate in the circumstances of the present case.

29.  The Applicant’s appeal is wholly unmeritorious and is accordingly dismissed.